ex-ABE3, USN 

Current Discharge and Applicant’s Request

Application Received:  20081124
Characterization of Service Received:  
Narrative Reason for Discharge: PHYSICAL STANDARDS
Authority for Discharge:  MILPERSMAN  PHYSICAL STANDARDS

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20040313 - 20040331  	Active:	

Period of Service Under Review:
Date of Enlistment:  20040401	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070823	Highest Rank/Rate:  ABE3
Length of Service:   Year(s)     Month(s)   23 Day(s)
Education Level:  	AFQT:  56
Evaluation Marks:	Performance:  3.6 (3)	Behavior:  2.3 (3)	OTA:  3.50

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  
- 20041222:  Article 92 (Failure to obey an order)
                     Awarded:       Suspended:   

           - 20050122:  Applicant failed Body Composition Assessment

          - 20051216:  Applicant failed Body Composition Assessment

SCM:     SPCM:     CC:     Retention Warning Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Discharge inequitable because he passed the Physical Readiness Test (PRT) despite not being able to comply with weight   
     standards.
2.  Post service conduct.

Decision

Date:  20090320		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  PHYSICAL STANDARDS.

Discussion

:  ()  .  The Applicant contends his discharge is inequitable because he passed the Physical Readiness Test (PRT) despite not being able to comply with the weight standards.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the naval service.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. 

The evidence of record reflects the Applicant failed five PRT’s, from Spring 2005 through Spring 2007, due to failure to meet body standards and failure to appear for the Fall 2005 PRT.  Pursuant to MILPERSMAN 1910-170, administrative separation processing is mandatory for members when they do not achieve prescribed physical readiness standards by failing to pass three physical fitness assessment (PFA) cycles in a 4-year period.  Per the Administrative Separation Notice of 9 July 2007, the Applicant was notified of administrative processing due to PFA failure and subsequently discharged.  Members discharged on the basis of failure to meet physical standards should receive an “Honorable” unless a “General (Under Honorable Conditions)” is warranted based on the members overall service record and performance.  The Applicant’s service record did not contain evidence of misconduct, counseling’s or adverse evaluations that would prevent a characterization of honorable.  

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Applicant submitted a letter from the Afloat Fitness Director of the FEP program indicating he had shown much enthusiasm and visited his office on several occasions for extra help in getting in shape.  The Applicant also presented documentation from his current employer confirming his employment as a landscaper.  Based on the Applicant’s overall good performance and conduct, the NDRB concluded there was an inequity in the characterization of discharge and voted 5:0 to upgrade to honorable.    

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 3 August 2005 until Present, Article 1910-170, SEPARATION BY REASON OF PHYSICAL FITNESS ASSESSMENT FAILURE

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that  grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable Discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023